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opening_statements [2019/02/28 20:27]
frescom created
opening_statements [2019/04/12 14:37]
frescom
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 ====== OPENING STATEMENTS ​ ====== ====== OPENING STATEMENTS ​ ======
  
-Ed Cape in his biblical tome, Defending Suspects at Police Stations says that the solicitor ​should make an opening statementDo not do this! Like the Bible you should not take everything Ed Cape says too literally+An Opening Statement is sometimes made by the solicitor ​at the very beginning of an interviewThe purpose is to set out their role and lay down the ground rules for interview. In effect it demonstrates that the rep is going to take an active role.
  
-cannot see the point of the solicitor making an opening statement.+am not a fan of them. However that is only my opinion. Opening Statements are not without support. They are championed by Ed Cape no less. His opinion in this industry carries significant weight. He is the leading expert. He maintains they should be used. Moreover, other significant academics and legal experts champion ​the cause. They are also recommended by Eric Shepherd.
  
-I like Ed Cape's book but I do not agree with everything he saysHe is an academic ​and he is not working at the coal faceHe is great at law in the lecture theater. But he is not practitioner. Police station advice is not given in a rarefied university library, its in the custody suite down at Holborn and Stainbeck. We do law at 3am with grumpy officers and crap coffee. We do PACE in practice not in proposition.+The police training manuals forewarn police officers to expect Opening StatementsSome interviewing officers are expecting them and will invite ​the legal adviser to make an Opening StatementThe CLAS and SRA Standards of Competence includes Opening Statement as method for ensuring ​the proper conduct of an interview
  
-If use an Opening ​Statement ​in your portfolio, exam or CIT you may well fail+In Defending Suspects at Police Stations Ed Cape puts forward ​an outline for Opening ​Statements and recommends the lawyer should explain the following:​ 
 +  - Explain the Role: to protect and advance my clients legal rights and to advise the client ​in interview where necessary. 
 +  - Formality: to address the client and rep with appropriate formality 
 +  - Comment or No Comment: "On my advice my client will/will not be answering questions. Please do not undermine my clients decision ​or I will intervene.
 +  - Reasons to intervene:​ 
 +    * - the client asks for advice 
 +    * - introduction of new undisclosed evidence 
 +    * - any pressure put upon the client 
 +    * - a break is necessary 
 +  - Summarise the disclosure 
 +  - Request more information:​ 
 +    * - Ask for the purpose of the interview 
 +    * - Ask for undisclosed evidence 
 +    * - Whether there is sufficient evidence to charge 
 +    * - Intentions post-interview
  
-1. its arguably not lawful and its not in PACE +My opinion ​is just that: an opinion. Far be it for me to disagree with the real experts but I have several issues with the use of an Opening StatementFirstly, I simply cannot see the point. Interviewing Officers know full well what the solicitor ​or there for. They understand his role. I cannot see a reason for spelling it out. If I intervene ​in an interview I do so when and if it is necessary. ​
-2. there is an arguable breach ​of privilege +
-3its not taught on courses ​or in any guidance notes+
  
 +My major issue though is with the risk to privilege. Opening Statements do not breach privilege. Saying my client will not answer questions is not a breach. My worry is that at that at 3 o'​clock in the morning we all say things we later regret. My concern is that a tired or inexperience rep could easily say too much and inadvertently breach privilege. The statement is on a corridor of thought that might best be avoided as there are so many doors that should remain locked. Moreover clients do not always follow advice. If my client was advised to give a full comment interview but then gives a no comment interview (or vice versa) has the Opening Statement undermined his position?
  
-1. In edition 5 Ed Cape justifies the use of an opening statement not via PACE but via the Shepherd book and the police training manual.+Another issue I have is that I cannot see a route to providing ​an Opening Statement in PACE. Code C 6D says,
  
-PACE Code C is pretty clear: ​"6D The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification,​ challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice."​ +"The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification,​ challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice."​
- +
-Our role does not include making speeches at the top of the interview. We do not lay down rules. The rules are contained in PACE and our role is to ensure the police abide by them. I could go on but suffice to say that PACE gives the '​opening statement'​ to the interviewing officer. +
- +
-2. In the opening statement Ed says you should say something like, 'my client is not answering questions'​. Its horribly close to a breach of privilege. Yes, yes, yes, I know what you are thinking. I am sure we could argue the toss on that. You did not give the reasons for the advice so its not a clear cut breach. But why take the risk? Why go so near the cliff edge? What is the advantage to your or the client? +
- +
-3. You were not taught to do opening statements on the courses you did. Why do it? We know how to pass exams. Surely, we have done enough of them to understand the game. Give the examiner what they want. Tick boxes and score points. I am not sure you were very sensible. Its not a philosophy course, its a practical exam.  +
- +
-I do like Ed Cape's book. Its authoritative certainly but like all law its an opinion not a definition.+
  
 +If the OIC says you cannot provide an Opening Statement what would I respond?
  
 +Finally, we have been made aware of a candidate who used Opening Statements in their Portfolio. They were failed for using them. They are not taught on the courses. That decision is under review and hopefully will be reversed. Do please get in touch if you use Opening Statements. My gut feeling is that they are not used by many reps but if you do use them let me know what you say and why.
  
  
opening_statements.txt · Last modified: 2019/04/12 14:37 by frescom